[nfbwatlk] FW: FYI-McClarty in Spokesman Review

[Mike Freeman]

Very interesting.

The Catch-22 situation referred to in the article certainly exists now 
in several of the Federal circuits and could potentially occur due to 
this ruling. But I'm not so sure but that people are panicking a bit 
when they say that diabetics and epileptics won't be covered under the 
reinterpreted state law. The American Diabetes ASsociation contends that 
the Americans with Disabilities Act -- even with its narrowed definition 
as mediated by several of the Federal Circuit Courts -- still protects 
diabetics.

I will say this: it seems to me that the narrower definition will make 
the law a bit easier to interpret. The question is whether it narrows 
the definition of disability *too* much.

Mike

On Tue, 8 Aug 2006, Noel Nightingale wrote:

> FYI
>  _____
>
>
> From: Davis, Marlene
> Sent: Tuesday, August 08, 2006 2:24 PM
> To: Olson, Toby
> Subject: FW: FYI-McClarty in Spokesman Review
>
>
>
>
>
>
>
>  _____
>
> From: Melinda Johnson [mailto:melindasjohnson at comcast.net]
> Sent: Tuesday, August 08, 2006 2:16 PM
> To: Davis, Marlene; Toby Olson
> Subject: FW: FYI-McClarty in Spokesman Review
>
> Could you send this article out to the GCDE list serve?  Thanks.  MJ
>
>
>
>  _____
>
> From: Mark Stroh [mailto:mstroh at wpas-rights.org]
> Sent: Tuesday, August 08, 2006 9:58 AM
> To: Melinda Johnson
> Cc: Betty Schwieterman; David Carlson; David Lord; Andrea Abrahamson; Phil
> Jordan
> Subject: FW: FYI-McClarty in Spokesman Review
>
>
>
> Melinda -
>
>
>
> Here is something else I am sure GCDE members would want to know about.  I
> know Toby is aware of our involvement but I am not sure the rest of the GCDE
> members are.
>
>
>
> Mark (Stroh)
>
>
>
>
> <http://www.spokesmanreview.com/>
>
> Tuesday, August 8, 2006
>
>
>
>
> Petition asks for review of disability definition ruling
>
>
> Opponents of narrow classification say some will lose protection
>
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>
> What the laws say
>
>
> Washington Law Against Discrimination defines "disability" as "a sensory,
> mental or physical condition that is medically cognizable or diagnosable,
> exists as a record or history or is perceived to exist whether or not it
> exists in fact." Under the federal Americans with Disabilities Act, a
> plaintiff must show "a physical or mental impair- ment that substantially
> limits one or more of his major activities, a record of such an impairment
> or is regarded as having such an impairment."
>
> Kevin
> <http://www.spokesmanreview.com/news/bylines.asp?bylinename=Kevin%20Graman%2
> 0> Graman
> Staff writer
> August 8, 2006
>
> Civil rights advocates are asking the state Supreme Court to reconsider a
> decision made last month that narrowly defines who is disabled, limiting the
> ability of some Washington citizens to seek protection against
> discrimination.
>
> The scope of the court's July 6 decision in the case of Tacoma electrician's
> apprentice Kenneth McClarty, who said he was fired because of a carpal
> tunnel injury caused by his work, caught many of the state's prominent
> disability rights advocates off-guard.
>
>
>
>
> Among them was Marc Brenman, executive director of the state Human Rights
> Commission, who called the 5-4 ruling in McClarty v. Totem Electric "a black
> eye for the state."
>
> "Washington state has traditionally been a pioneer in protection of people's
> civil rights," Brenman said. "This would be a step backward."
>
> The commission, charged with enforcing the Washington Law Against
> Discrimination, is among several public and private agencies that either
> have filed or are preparing friend-of-the-court - or amicus curiae - briefs
> in the case. They support a petition for reconsideration of the Supreme
> Court ruling that limits who is considered disabled under the state law to
> the more narrow definition of disability under Title I of the federal
> Americans with Disabilities Act.
>
> The Supreme Court is under no obligation to take up the matter again. For
> now, the federal definition stands as Washington law.
>
> Among those no longer protected against discrimination in such things as
> employment and housing, according to Brenman and other advocates, are people
> with psychiatric or emotional disabilities, people with diabetes, multiple
> sclerosis, arthritis or epilepsy and people with temporary disabilities.
>
> "It's dismaying when you look at it," he said. "You say to yourself, 'If
> these people aren't disabled, who is?' Do you have to be in an iron lung to
> be disabled?"
>
> Brenman said the Human Rights Commission annually investigates about 1,000
> complaints, about 40 percent of them involving disability.
>
> "If we have to change our definition," Brenman said, "20 (percent) to 50
> percent of the types of complaints we investigate now would not be
> investigated."
>
> Business groups greeted the decision with "unanimous surprise and support
> for the court's reasoning," said Kris Tefft,general counsel for the
> Association of Washington Business, who added that it should mean fewer
> claims and less litigation.
>
> "It shows a greater willingness to look to federal law in employment issues,
> something business has been looking for all along," Tefft said.
>
> In particular, he said, the ruling should be a relief to small businesses
> that have had to navigate the differences between state and federal laws.
>
> "Sometimes they are more protective, sometimes less," Tefft said. "It can be
> a real costly trap for the unwary."
>
> Though the Association of Washington Business supports the McClarty
> decision, it is unlikely to weigh in on the motion for reconsideration,
> Tefft said.
>
> The reason advocates on both sides of the issue were surprised by the ruling
> is that the Supreme Court "issued a much more global ruling regarding the
> definition of disability" than either party in the McClarty v. Totem
> Electric case had sought, according to lawyers for the Washington Protection
> and Advocacy System, a private nonprofit organization that advocates for the
> rights of people with disabilities.
>
> The court was asked to decide whether the definition of a disability in a
> "disparate treatment" claim - in this case, an employee who was discharged
> for discriminatory reasons - was the same as the definition in a case where
> the employer fails to make "reasonable accommodation" for a disabled
> employee.
>
> Instead, the court rejected the state's definition for any disability
> discrimination claim as interpreted by the Human Rights Commission in favor
> of the federal law's narrower definition.
>
> Writing for the majority, Justice James M. Johnson said, "The most obvious
> problem with (the state law) is that its definition of 'disability' is at
> odds with the plain meaning of the term."
>
> Johnson said that under the state's definition, a "receding hairline could
> constitute a disability," trivializing discrimination against people with
> disabilities.
>
> "To provide a single definition of 'disability' that can be applied
> consistently throughout the (state law), we adopt the definition of
> disability set forth in the federal ADA," Johnson wrote.
>
> Justices Charles W. Johnson, Barbara A. Madsen, Richard B. Sanders and Bobbe
> J. Bridge concurred.
>
> In her dissenting opinion, Justice Susan Owens wrote that the majority's
> "judicial rewrite" of the state anti-discrimination law contravenes the
> intent of lawmakers. She was joined by Justices Tom Chambers and Mary E.
> Fairhurst. Chief Justice Gerry L. Alexander wrote a separate dissenting
> opinion, contending that the majority had "usurped the authority of the
> Legislature and enacted a new law."
>
> Owens said the Legislature has had many opportunities to narrowly define the
> term "disability" since the disability provision was added to
> anti-discrimination law in 1973.
>
> The definition didn't change in 1993, for instance, when business interests
> asked the Legislature to adopt a narrower definition.
>
> "The Legislature clearly intended that the law be interpreted liberally,"
> said Jesse Wing, of the Washington Employment Lawyers Association. David
> Carlson, an attorney for the Washington Protection and Advocacy System, said
> the state's definition of disability has been around for decades, "and we
> have not run into the receding hairline problem." Far from generating
> specious lawsuits, the state law has protected people suffering
> discrimination who are not protected by the ADA, he said.
>
> Now, "people with disabilities will have less protection from people with
> irrational biases," Carlson said. "If we have to fight about these
> definition issues, we won't have the resources to protect as many people."
>
> Carlson's nonprofit organization was joined by the National Alliance on
> Mental Illness Greater Seattle, the Tacoma Area Coalition of Individuals
> with Disabilities, the Epilepsy Foundation and the Alliance of People with
> Disabilities in urging the court to reconsider.
>
> The Washington Employment Lawyers Association and the Washington state Labor
> Council have filed a separate amicus curiae brief .
>
> What worries these groups is that the ADA, which has been eroded in recent
> years by federal court decisions, narrowly defines disability as "a physical
> or mental impairment that substantially limits one or more of the major life
> activities."
>
> In contrast, the state law's broader definition of disability is "a sensory,
> mental or physical condition that is medically cognizable or diagnosable."
>
> The big difference, Brenman said, is that the federal definition requires
> courts to consider whether an individual is trying to "ameliorate" a
> disability such as epilepsy or a mental condition that can be mitigated by
> drugs.
>
> Carlson said this difference creates the potential for a legal Catch-22 in
> which a person with a psychological disorder can, through medication, get
> well enough to go back to work.
>
> "Once they are able to go back to work, they are no longer protected and an
> employer can fire them for whatever reason, including mental disability,"
> Carlson said.
>
> Brenman said the Supreme Court's decision, if it stands, has the potential
> to deny thousands of disabled citizens constitutional protection.
>
> "We all know people who have had injuries and illnesses who can't work
> because of a disability," the human rights director said. "They become much
> more of a burden to the economy if they are not working and paying taxes.
> This will throw more people out of work. It seems to run counter to other
> driving forces in society to get people more gainfully employed."
>
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